Neo-Nazis in Skokie. The unspeakable Westboro clan. Inevitably, sad sacks such as these are the unattractive pillars on which organic law rests.
Attorney General Dustin McDaniel is ready to whittle down the First Amendment a bit on account of them. He has announced he will intervene in a Supreme Court case on behalf of the Arkansas law that invokes a no-protest zone for a period of time around funerals.
It gives me no pleasure to say to those aggrieved here that there is not yet a constitutional right to be absolutely protected from opinions, even ones as offensive as those of the Westboro gang (to call it a church is to profane the word).
In the case in which McDaniel will intervene, an appeals court noted that a Westboro protest at a Marine’s funeral was held in a public area under police supervision and did not disrupt the funeral. The 4th Circuit overturned a jury verdict of damages for the Marine’s family over things said on the Westboro group’s website and elsewhere.
McDaniel will file a friend of the court brief to defend the state’s no-speech zone in the appeal. Protection of select exceptions to free speech rights is a slippery slope, as the far-removed “free speech” zones of the Bush presidency — and arrests of people wearing innocuous T-shirts — demonstrated. Here’s a full discussion of the history and difficult First Amendment questions that McDaniel skips over in the funeral law case.
Hard as it is to do, people like the Phelpses are best ignored. The patriotic motorcycle group that provides a silent and peaceful shield around the nuts when they turn up at funerals has been a powerful free expression of its own.